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Public law and Regulation

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30 JAN 2013

The Hillsborough disaster - further legal developments

The continuing repercussions of the Hillsborough disaster have taken a prominent position in the press of late. Of particular note to public lawyers is the recent quashing of the verdicts relating to the deaths of all 96 victims, seen as a significant step towards achieving justice for the victims and their families.

The events of 15 April 1989 were legally significant for a number of reasons. The sad case of Anthony Bland, who was left in a persistent vegetative state, gave rise to the immensely significant House of Lords decision in Airedale NHS Trust v Bland [1993] AC 789, which allowed the withdrawal of life-prolonging treatment for the first time in England and Wales. In the area of tort law, the disaster led to two significant developments regarding psychiatric damage to secondary victims. In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, the House of Lords rejected the claim of individuals who had watched the events at the stadium on television to damages for psychiatric harm caused by witnessing the scenes. Their Lordships held that they were not sufficiently proximal to the scene. This was affirmed and the extent of any claim for secondary psychiatric damage narrowed in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, in which police officers who had attended the stadium on the day had a similar claim rejected.

The original inquest took place from 19 April 1989 until 28 March 1991. It was, at the time, the longest inquest ever held in England. The delay was in part due to the decision to first hold ‘mini-inquests', given the ongoing investigations which followed publication of Lord Justice Taylor's Interim Report in August 1989, which could have led to criminal prosecutions. As such, the jurors were told that they would only be asked to consider the identity of each victim, and when and where they had died. In a move which was greatly criticised by the recent Hillsborough Independent Review Panel, the coroner decided that events after 3.15pm would not be examined. This was not challenged at the time but was considered as part of the subsequent judicial review [R v HM Coroner for South Yorkshire, ex parte Stringer and others (1994) 158 JP 453]. The judicial review challenged the decision to delay consideration of the causes of death until after the Director of Public Prosecutions had concluded the criminal investigation. It was found that no grounds for judicial review arose, as the coroner had shown no lack of fairness, no unreasonableness, had directed the jury properly and had made a full inquiry. Thus the verdicts of ‘accidental death' stood.

In 2012, following the publication of the report of the Hillsborough Independent Review Panel, the Attorney General applied to the High Court to have these verdicts quashed and a new inquest ordered. The power of the High Court to do so is found in section 13 of the Coroners Act 1998. Subsection (1)(b) provides that it may do so if:

‘by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.'

In discussing these grounds Lord Judge, delivering the verdict of the court, felt that it was clear that where new evidence suggested that the ‘substantial truth' about the cause of death had not been uncovered at the first inquest, it would be in the interests of justice for a new inquest to be held. Importantly, he added that the court was not limited to exercising its jurisdiction where it felt that a different verdict was likely to be returned. What was important here was the full exposure of all available evidence. That the truth be recorded was important not only for the families, but for the community as a whole.

The Lord Chief Justice went on to describe the 3.15pm cut-off point, the point at which the first ambulance arrived at the scene, as ‘the most distressing aspect revealed by the new material'. The concern of the families was that, by imposing this limitation, the inquest had failed to look at the actions of the ambulance service and police, as well as those co-ordinating the rescue, excluding consideration of whether quicker treatment could have saved lives.  Post-mortem evidence clearly shows that it was not the case that all the victims, once their injuries had been inflicted in the crush, were beyond saving. This contradicted evidence given by a pathologist at the original inquest; evidence which had gone unchallenged. Evidence suggested that some victims may have still been alive when removed from the crush area, and could potentially have been resuscitated. In short, what occurred after 3.15pm could have been significant in that lives could have been saved, and that it could have given a clearer assessment of the culpability, if any, of the police and rescue services. It was also relevant that much fuller evidence was now available.

Although the issue of the 3.15pm cut-off was, in the mind of the court, sufficiently grave to justify the quashing of the verdicts, a number of other issues were also relevant. Firstly, the emphasis placed (we now know wrongly) on the role of alcohol, would also have had an impact on the view taken of police actions, as it had been suggested that the crowd were difficult to control. Secondly, the jury at the original inquest was not aware of the full extend of amendments and alterations to statements of members of the police, fire and ambulance services. Finally, the safety concerns about stadium had only fully come to light with the publication of the report of the Independent Panel.

In quashing the verdicts and ordering new inquests, the High Court noted that it would be for the new coroner to decide what evidence was relevant to the questions to be answered, and also to decide whether the inquests should take the form of an ‘Article 2'-type inquest.

Lord Judge described the ‘profound, almost palpable, belief that justice has not been done and that it cannot be done without and until the full truth is revealed'. It is to be hoped that the new inquests will at least assist in uncovering the full truth.

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